Why would a divorce case be dismissed?
As you consider pursuing a divorce case, or if you are in the early stages of one, you likely have many questions. You may have heard family members, friends, or even work colleagues talk about divorce cases being dismissed. One question that may be floating in your head is why would a divorce case be dismissed. In reality, there are a number of reasons why a divorce case might be dismissed.
Motion of a Party or the Parties
A common reason why a divorce case may end up dismissed is if the parties to the case elect to end the proceedings. If a couple desires to attempt a reconciliation, they may mutually decide to end the divorce proceedings.
In this type of situation, one or another of the parties to the case may file a motion to dismiss with the court. In some instances, the spouses may file a joint motion to dismiss.
The laws in all states establish certain jurisdictional parameters that must be met in order for divorce proceedings to be held in a particular court. These criteria usually include a minimum time requirement within which the couple must have resided in the state. There also typically is a requirement that at least one of the parties to a divorce case live in the county in which divorce proceedings are brought.
If these jurisdictional issues are not met, the case will be dismissed. Technically speaking, without the jurisdictional criteria being satisfied, a court lacks the lawful authority to issue a divorce decree.
Failure to Prosecute
Another reason why a divorce case can be dismissed is if the parties fail to prosecute the matter. What this essentially means is that a divorce case is filed, but ultimately nothing is done by the parties to pursue it. In the alternative, the parties may initially pursue the case, but then stop for some reason.
The court usually provides notice to the parties advising them of its intent to dismiss the case for failure to prosecute. The parties normally are provided at least some time correct the situation before the court dismisses the case. In some cases, if a case is dismissed in this manner, the parties may be able to have it reinstated. They will have to demonstrate good cause to the court for not diligently pursuing the case in the first instance.
Improper Court Papers
A court case can be dismissed at the outset if the person who initiated divorce proceedings failed to utilize proper pleadings. Pleadings is the legal term for court paperwork.
Improper pleadings can include everything from utilizing incorrect paperwork when the court initially is filed to incorrectly completing that paperwork. The court many times will allow the party that started a divorce case an opportunity to correct the paperwork deficiency. If that is not accomplished in the timeframe established by the court, the case is likely to be dismissed shortly after the expiration of the deadline.
The potential for these mistakes by someone not versed in divorce law underscores the benefits associated with hiring a lawyer. A skilled, experienced divorce attorney understands the paperwork necessary to start a divorce case, and knows how to complete that paperwork in a proper manner. If a mistake is made, an experienced lawyer also understands how to correct it.
Will he miss the court hearing if he’s in jail?
Marriages fail all the time for various reasons, and sometimes that reason is the incarceration of one partner. If your husband was arrested and sent to jail, you have a decision to make. You might decide the best thing you can do for your family is stand by the man you love. You might also make the decision to leave. Perhaps what he did was appalling and horrible, and you can’t stand the idea of being married to a man who commits crimes. Perhaps you thought you would make it work, but it’s been too much of a challenge. If you decide to divorce a man who is currently incarcerated, what happens when you both have to appear before a judge?
Incarceration and Divorce
The situation works the same way it does outside court in terms of the response. You are given a predetermined number of days to respond to the divorce petition filed by your spouse. You must either sign the paper and agree to all the terms outlined by your spouse, or you must respond with your own demands and make changes to the issues outlined in the paperwork.
If your spouse is in jail when the papers are served, he still has the same number of days to respond. If he doesn’t send a response in that time, he is going to find the judge grants you all you want in the divorce by default. If you assume your spouse will not get the paperwork in jail, you are incorrect. It is served to him in a timely fashion, and he does have the legal right to respond.
Your spouse doesn’t have the right to attend your divorce hearings when they are scheduled if he is incarcerated. That doesn’t mean he cannot attend them, however. If your spouse decides to ask for permission to attend the hearings, it’s sometimes granted. There is no guarantee your spouse is going to receive this kind of permission. It typically depends on how long he is in jail, what he did, and the terms of his or her imprisonment.
There are also other options. Your spouse might be able to arrange to be present at the hearing by telephone. This is something the court might allow if there are kids involved in the divorce and your spouse wants to be present to avoid having his parental rights taken from him despite his incarceration. If you are asking to terminate the rights of your spouse’s relationship with your kids, he must be present. His attorney must be present with him, and the court cannot proceed without him in attendance.
Calling an attorney is the best way to go about handling a divorce with a man in jail. If he is incarcerated, it does change things a little. You want to ensure the situation is as smooth and simple as possible, and this means you want to be sure you’re doing the right thing by your family. Make sure you do things correctly so you don’t end up losing out on what you want or need in the divorce process. Your attorney can help you file the necessary paperwork and even handle the details regarding hearings and your incarcerated spouse and his right to attend hearings.